This is the third time this case has come before us on appeal from a grant of partial summary judgment. See
Faircloth v. A. L. Williams & Assoc.,
1. Plaintiff first argues that the trial court erred in granting summary judgment for defendant on his claim for an equitable accounting under OCGA § 23-2-70. An accounting under this Code section is not warranted if the accounts are not unusually complicated and an adequate remedy is available at law. See
Insurance Center v. Hamilton,
2. Plaintiff also contends that the trial court should not have granted summary judgment on his conversion claim. The trial court had previously granted summary judgment on the conversion claim, however, and that summary judgment was affirmed by this Court in
Faircloth III.
Pointing to language in
Faircloth III
referring to the lack of an “allegation” that the converted funds were represented by a receipt or certificate, plaintiff suggests that the prior affirmance was based on a mere deficiency in pleading. Thus, he reasons, it should not be binding and he should be allowed to replead his conversion claim to include such an allegation. Under our system of modern pleading, however, neither a summary judgment nor a dismissal for failure to state a claim may be based on a mere deficiency in pleading. The only reasonable reading of
Faircloth III,
therefore, is that summary judgment was properly granted on the conversion claim because plaintiff did not
establish
that the monies owed him under the contract were
Plaintiff’s reliance on OCGA § 9-11-54 (b), for the proposition that the prior ruling of this court is not binding because the trial court’s prior grant of summary judgment was not a “final judgment,” is misplaced. That Code section allows an otherwise interlocutory ruling to become “final,” and therefore immediately appealable. Since grants of partial summary judgment are already immediately appeal-able under OCGA § 9-11-56 (h), OCGA § 9-11-54 (b) does not generally come into play when they are involved. And to the extent it does come into play, the effect would be to make the grant of partial summary judgment a “final judgment” which must be immediately appealed lest the right to appeal be lost. If the grant of partial summary judgment is not made “final” under OCGA § 9-11-54 (b), on the other hand, the party against whom it is entered has the option to appeal at that time or not; but if he does choose to appeal, as plaintiff did in Faircloth III, the decision on appeal is binding under OCGA § 9-11-60 (h).
3. Lastly, plaintiff challenges the trial court’s determination that under the contract, plaintiff could not be entitled to deferred commissions because he did not “retire.” The written “Senior Vice President” (“SVP”) agreement (which is the only agreement still at issue under the previous appellate decisions in this case) provides that plaintiff would be entitled to deferred commissions “[i]n the event of the occurrence of any of the Disabling Events prior to termination of this Agreement.” And the definitions section of the agreement states that “ ‘Disabling Event’ shall be defined as any one of the following: (1) Death of the SVP; (2) ‘Total Disability’ of the SVP as defined herein; or (3) Retirement of the SVP.” Plaintiff acknowledges that
the death and total disability provisions do not apply, but argues that his cessation of work for defendant constitutes retirement. The contract specifies, however, that retirement can happen only after the SVP has either performed his duties for three years or reached the age of sixty-two. As neither of these preconditions to retirement occurred before plaintiff stopped working for defendant, the trial court did not err. Plaintiff’s citation of various rules governing construction of contracts fails to convince us otherwise, as the language of the agreement is clear, and where the language is clear, there is no room for construction. See, e.g.,
Akron Pest Control v. Radar Exterminating Co.,
Judgment affirmed.